Supreme Court New South Wales Medium Neutral Citation: Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd (No 2) [2024] NSWSC 1322 Hearing dates: On the papers Date of orders: 17 October 2024 Decision date: 21 October 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Defendant pay plaintiff's costs of and incidental to the proceeding on ordinary basis Catchwords: COSTS – party/party – costs orders in interlocutory proceedings – costs in the cause – where judgment entered for the plaintiff – where the defendant seeks its costs in respect of documents produced in answer to plaintiff's Notice to Produce – where defendant had earlier consented to an order that the costs of its motion seeking to set aside the Notice to Produce be costs in the cause – decline to make costs order sought by defendant Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd [2024] NSWSC 1244 Category: Costs Parties: Fredon Infrastructure Pty Limited (Plaintiff) Hitachi Rail GTS Australia Pty Ltd (Defendant) Representation: Counsel: D Hume (Plaintiff) F P Hicks SC / D Byrne (Defendant) Solicitors: CDI Lawyers (Plaintiff) Marque Lawyers (Defendant) File Number(s): 2024/241547 JUDGMENT 1. I gave judgment in this matter on 4 October 2024. [1] 2. The parties agree that I should make the following orders to give effect to those reasons: 1. In respect of the Victoria Cross Station Contract: 1. Pursuant to s 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the "SOP Act"), the Defendant pay the Plaintiff the sum of $1,986,891.92. 2. Pursuant to s 11(2)(a) of the SOP Act, the Defendant pay the Plaintiff the sum of $114,937.87 in interest on the sum in order 1(a) at the rate prescribed under s 101 of the Civil Procedure Act 2005 (NSW) from 20 March 2024 to 9 October 2024. 1. In respect of the Crows Nest Station Contract: 1. Pursuant to s 15(2)(a)(i) of the SOP Act, the Defendant pay the Plaintiff the sum of $898,273.98. 2. Pursuant to s 11(2)(a) of the SOP Act, the Defendant pay the Plaintiff the sum of $51,962.06 in interest on the sum in order 2(a) at the rate prescribed under s 101 of the Civil Procedure Act from 20 March 2024 to 9 October 2024. 1. The Defendant pay the Plaintiff's costs of and incidental to the proceeding on the ordinary basis. 1. I made those orders on 17 October 2024. 2. Hitachi also sought the following order: "Pursuant to [Uniform Civil Procedure Rules 2005 (NSW) ("UCPR")], r 21.13, the Plaintiff pay the Defendant's costs of production, including legal costs, in respect of the documents produced pursuant to the orders 2(h) and (i) made on 23 September 2024." 1. On 23 August 2024, Fredon served on Hitachi a Notice to Produce. 2. By Notice of Motion filed on 12 September 2024, Hitachi sought to set aside the Notice to Produce in its entirety. 3. That motion was returnable before me on 20 September 2024 and was settled on the basis that Hitachi would produce all the documents sought, subject to identified redactions. 4. Relevantly, Hitachi agreed to produce documents in Categories (h) and (i) of Fredon's Notice to Produce, being the categories referred to in Hitachi's proposed costs order, as follows: "Communications attaching payment claims between 1 August 2023 and 29 February 2024 from, on the one hand, subcontractors of the Defendant (other than the Plaintiff) in respect of the Sydney Metro City and Southwest Project and, on the other hand, any of Erika Green, Chitra Shende and Euan Noble. Payment schedules issued by the Defendant, and the communications by which the Defendant issued those payment schedules, in respect of the Sydney Metro City and Southwest Project in the period 1 August 2023 to 29 February 2024 (other than payment schedules issued to the Plaintiff)." 1. Those documents were amongst those in Exhibit B referred to at [100] and [101] of my 4 October 2024 judgment, the tender of which I rejected at the hearing. 2. On 17 October 2024, my Associate informed the parties that I declined to make the further order sought by Hitachi. 3. My reasons for doing so were that, first, Fredon was successful in the proceedings so that costs of and in relation to the proceedings, including the costs of all interlocutory steps, should follow the event. 4. In any event, orders for production of the documents in Categories (h) and (i) were made by consent and in circumstances where Hitachi also consented to an order that the costs of its motion seeking to set aside the Notice to Produce be "costs in the cause". That order necessarily included Hitachi's costs of complying with the Notice to Produce. 5. Further, costs under UCPR r 21.13 are subject to the special rule in UCPR r 42.33 that a costs order should not be made, unless the Court otherwise orders, unless the parties concerned have attempted, but failed, to agree on the amount of costs. That has not been done. 6. It is for those reasons that I declined to make the further order proposed by Hitachi. ********** Endnote 1. Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd [2024] NSWSC 1244 ("4 October 2024 judgment"). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2024